Michael McDowell (Independent) | Oireachtas source

Yes. The wording is:

The Commission may as it considers necessary to assist it in the performance of its functions —(a) enter into contracts or arrangements with any person, and

(b) with the consent of the Minister, appoint consultants or advisers.

There is a distinction here between “any person” and appointed consultants and advisers. I ask the House to remember that. Then section 11(8) states:

Any contract or arrangement with a person, or appointment of a consultant or adviser, referred to in subsection (7) may enable the person, consultant or adviser to—(a) advise and assist the Commission in its consideration of applicants at a preliminary stage in the course of the selection procedures, and

(b) provide an evaluation or an assessment of an applicant’s suitability for appointment that would assist the Commission in making any decision in the course of carrying out those procedures,but shall not enable the person, consultant or adviser, for the purpose of performance by the Commission of that function, to do any other thing (other than a thing which facilitates such performance).

We discussed the ludicrous unintelligibility of that provision before. It is very clear from the last paragraph of section 11(8) that the sole purpose for which persons, consultants and advisers can be appointed is to advise the commission in its consideration of applicants at a preliminary stage, which I described as the winnowing out stage, and then to provide an evaluation or assessment of an applicant’s suitability for appointment that would assist the commission. That is in the Minister’s Bill; I am not conjuring it up. That is the function of the three categories.

In respect of the category of "a person", I do not know what sort of person they might appoint who was not a consultant or an adviser. However, they could ask a "person" to look at all the applications for such a position, first of all to winnow out under section 11(8)(a) the people who are at a preliminary stage and are not even to be considered, and then under section 11(8)(b) to do a further and much more serious thing, which is to carry out an evaluation of an applicant. That is what the law is providing. None of this is in the JAAB procedure, by the way. It has never, ever attempted to do anything like this and it would be foolish of it ever to contemplate doing this kind of thing. I should point out because it is relevant that in section 11(7)(b), the Minister alone is entitled, by withholding consent, to prevent the appointment of consultants and advisers, but he is not able to stop a "person" under section 11(7)(a) from being appointed by the commission to carry out these functions. He has no veto power there.

We are dealing with the capacity of the commission to appoint a person by way of contract to carry out a winnowing function and then, among those who have survived the winnowing, to carry out an evaluation of applicants. That is what the legislation is about. I do not want to waste the time of the House just going back over this. It is wrong-headed and should not be there. If this commission is going to be so elaborate and so great as the Minister, Deputy Ross, has claimed, and so well resourced, why would it want to appoint persons to evaluate the suitability of applicants? The Minister has said here that he thinks I have the wrong end of the stick. I am saying these are the provisions he is giving this independent commission, which, as Senator Craughwell said, he has the right to do.

How does this tie in to section 27? The evaluations, presumably, will be in writing. Presumably, they will contain confidential information. If it is the case that members of the Judiciary seeking promotion or members of the legal profession seeking to be appointed as judges in the first instance are to be subject to a process whereby a person not even on the commission evaluates their suitability, then breach of the obligation of confidentiality could be catastrophic for them.